Endangered Species Act

  • September 25, 2015
    Guest Post

    by Jason Rylander, Senior Staff Attorney, Defenders of Wildlife

    On September 28, the U.S. Court of Appeals for the Tenth Circuit will hear arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service, a case that will test whether the Federal government can protect the Utah prairie dog under the Endangered Species Act (ESA).  This case is not just about one species – it is a test of federalism itself – and its outcome could have broad implications for wildlife and environmental protection.

    Representing PETPO, the Pacific Legal Foundation has argued that the Constitution’s Commerce Clause does not give the federal government the authority to protect Utah prairie dogs. They say that because the species lives in just one state and arguably has no commercial value only the state government has the right to manage it.

    These are radical ideas. Every single court to consider the question – including the Fourth, Fifth, Ninth, Eleventh, and D.C. Circuits – has upheld the federal government’s constitutional authority to protect wildlife through the ESA. But last year, District Court Judge Dee Benson of Utah disagreed, and so the Tenth Circuit will weigh in on what had, until now, been settled law. As I argued in an amicus brief for Defenders of Wildlife and five other national conservation groups, the Tenth Circuit should reverse.

  • September 24, 2015
    Guest Post

    by Bruce Myers & Jay Austin, Senior Attorneys, Environmental Law Institute

    To date, a wolf, a toad, two fish, a fly, and a collection of “cave bugs” have successfully carried the banner of the Endangered Species Act (ESA) against a series of constitutional challenges. On Monday, the Tenth Circuit will hear oral arguments in People for the Ethical Treatment of Property Owners v. U.S. Fish & Wildlife Service—yes, you read that name correctly—on whether the Act is unconstitutional as applied to the endangered Utah prairie dog. PETPO has implications for nearly every federal environmental law, and for other laws enacted on the basis of Congress’ authority to pass legislation that is necessary and proper for regulating interstate commerce.

    As Professor David Driesen documented in earlier posts (here and here), PETPO asks whether the Fish & Wildlife Service can protect this prairie dog if it neither crosses state lines nor has obvious economic value. A federal district judge in Utah thought not, triggering this appeal. Now, the court must decide whether this unassuming rodent stands entirely outside Congress’ constitutional authority to regulate activities that, in the aggregate, “substantially affect” interstate commerce (as the Supreme Court characterized this aspect of the commerce power in its 2005 medical marijuana ruling, Gonzales v. Raich).

    This is not property-rights advocates’ first whack at the ESA, nor the first time a federal court has considered the constitutionality of protecting intrastate or highly localized species under it. From 1997 to 2011, six appellate cases spanning five circuits rejected similar challenges. These rulings feature a rogues’ gallery of species that are mostly uncharismatic and lack evident commercial value: the Delhi Sands Flower-Loving Fly, California delta smelt, arroyo southwestern toad, Alabama sturgeon, red wolf, and various subterranean cave-dwelling invertebrates.

  • September 15, 2015
    Guest Post

    by Jamie Pang, Center for Biological Diversity   

    The right to petition the federal government for a "redress of grievances" is one of the heralded freedoms guaranteed in the Bill of Rights.  This right has been codified by the Administrative Procedure Act, and ensures that any citizen can petition an administrative agency of the executive branch to take a course of action.  The ability of citizens to petition the government to make progressive change has been a critical tool under the Endangered Species Act ("ESA"), Clean Air Act, and Clean Water Act, among many other laws.  For example, a citizen petition was the precursor of the landmark Supreme Court case Massachusetts v. Environmental Protection Agency, which requested that the EPA regulate greenhouse gases as a pollutant.  At its most basic, the right to petition serves as a powerful tool that levels the playing field for citizens and  watchdog groups to ensure that environmental protections are not weakened by industry or state governments hostile to progressive change. 

    This summer, the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively the "Services") proposed to severely limit the ability of private citizens and organizations to petition for protection of imperiled species as threatened or endangered under the Endangered Species Act. One of the most troubling aspects of this proposal is a requirement that any individual or organization petitioning to have a species listed under the ESA submit their petition to every state where the species may occur (live) prior to submitting the proposal.  Going further, the petitioner must allow each state to respond, refute, or comment on the petition.  The petitioner must also append any responsive information provided by a state agency to the petition, without the opportunity to rebut any information that may be adverse to the petition.  On a practical level, the proposal essentially gives potentially hostile states that are resistant to federal wildlife protections veto power over the petition.  On a constitutional level, the proposal violates the basic right of free speech to the extent that it requires a petitioner to act as a mouthpiece for state data.

    The second proposed requirement would mandate that a petitioner gather "all relevant information" regarding the imperiled species and include that information with the petition.  This unbounded requirement effectively forces a petitioner to act as if they are an expert government agency and compile an enormous amount of information at great cost.  Despite the ESA’s clear instruction that the government has the burden to conduct status reviews of imperiled species, this proposal would burden ordinary citizens with the nearly impossible task of collecting hundreds , if not thousands, of articles, books, reports and virtually everything about the species available on the internet.  The petitioner must legally "certify" that he or she has fully complied with these requirements under penalty of law.  These broad requirements will likely have a chilling effect on speech.  They will dissuade citizens, individual scientists and non-profit organizations from filing petitions to protect species and thereby infringe on the first amendment right to petition.

  • April 22, 2015
    Guest Post

    by David M. Driesen, University Professor, Syracuse University College of Law

    On April 21, 2015, I filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit on behalf of a group of constitutional law professors defending the constitutionality of an Endangered Species Act (ESA) rule protecting the Utah prairie dog.  As mentioned in a previous post, this case focuses on a federal district court ruling striking down the prairie dog rule on the ground that the rule is “non-economic” and has only a tenuous link to interstate commerce.  Simply put, if the Tenth Circuit upholds this ruling, it could lead to a significantly adverse impact on the ESA, as nearly 70 percent of all protected species reside intrastate.  It would further cause a split in the circuits, potentially giving rise to review by the Supreme Court.            

    The brief’s primary contribution to the Tenth Circuit’s deliberations involves fleshing out the concept of “economic activities” under United States v. Lopez and United States v. Morrison, and developing its implications for this case.  Both of these Supreme Court cases struck down federal statutes regulating ordinary criminal activity, emphasizing that those activities were not “in any sense” economic.  On the other hand, the Lopez Court reaffirmed a long line of cases upholding statutes regulating economic activities.         

  • March 30, 2015
    Guest Post

    by David Driesen, University Professor at the Syracuse University College of Law. 

    In November of last year, a federal district court judge in Utah declared a rule protecting the Utah prairie dog under the Endangered Species Act (“ESA”) invalid as beyond Congress’ Commerce Clause power in People for the Ethical Treatment of Property Owners v. U.S. Fish and Wildlife Service.  The district court applied Lopez-scrutiny in finding that the Commerce Clause could not regulate takings of the Utah prairie dog, a purely intrastate species, because there was no substantial relation to interstate commerce.  The district court also rejected every argument posited by the Fish & Wildlife Service (“FWS”) in holding that takings of the prairie dog to the point of extinction, and the impacts of the takings on the food-chain and ecosystem writ large, did not affect interstate commerce, thus making the regulations protecting the animal unconstitutional. The FWS has appealed this ruling to the United States Court of Appeals for the Tenth Circuit, which will likely hear argument in the fall. 

    This is not the first case to challenge the ESA’s application to so-called “intrastate species,” and the Courts of Appeal have uniformly rejected such challenges in the past. However, this ruling is important for several reasons. First of all, most species protected by the ESA are located exclusively in one state; an appellate ruling calling into question the constitutionality of intrastate species protection in a circuit with numerous protected species could significantly undermine the ESA. Second, although the judge ostensibly addressed a single rule issued under the ESA, his reasoning constitutes an attack on the Act’s take prohibition, which limits activities harming all protected species. The court’s ruling treats all activities regulated under the ESA as if they were non-economic because this provision does not expressly limit itself to economic activities. If this approach to evaluation of actions implementing the ESA survives, it would imply that the survival of species protected under the Act would depend on inexpert federal judges’ review of science linking a single species to economic impacts, as viewed through the skeptical lens of Lopez. And finally, a ruling upholding the District Court might be interpreted as creating a circuit split leading to Supreme Court review.